A Commitment to Safety

On August 20th 2010, the Casper Star Tribune reported that for 2009, workplace
fatalities in Wyoming had reached a record low. In 2008, Wyoming had 33
workplace fatalities and, on a per capita basis, the highest workplace
fatality rate in the country. In 2009, the number of workplace fatalities
dropped to 19, the lowest number since 1992 when the Census of Fatal Occupational
Injuries began keeping records. As a result, Wyoming’s workplace
fatality rate is now the third worst in the nation.

The new statistics are mildly encouraging because historically, Wyoming’s
workplace safety record has been atrocious. Our current status of third
worst in the nation still leaves significant room for much needed improvement.
In 2003, 2004, 2005, 2007, and 2008, Wyoming had the sad distinction of
being the State with the nation’s highest workplace fatality rate,
a rate that was at least three and sometimes more than four times the
national average. To make matters worse, two of the most dangerous industries,
logging and commercial fishing, are barely present in Wyoming.

*Alaska had the highest workplace fatality rate in 2006.
** Montana had the highest workplace fatality rate in 2009. North Dakota
was second.

While any headline titled ‘Workplace Deaths Hit Record Low’
is welcome news, the article, based on information from the Wyoming Department
of Employment, notes that total employment in Wyoming dropped by 4% or
11,800 jobs. Wyoming’s current unemployment rate is approximately
6.5%. Three years ago, Wyoming’s unemployment rate was 2.5%. Predictably,
with fewer people working, there should be fewer workplace injuries and
fatalities. In August 2010, the Research & Planning division of the
Wyoming Department of Employment published an article titled ‘Employment
Change and Impacts on Workplace Fatalities in Wyoming’. Two detailed
statistical analyses determined that for every 1% increase in employment,
the number of workplace fatalities increased by 2.4 to 2.7. According
to the article’s authors, “[t]he hypothesis is that greater
exposure (number of people employed, total hours worked, hours worked
per person, etc.) is associated with the number of fatalities.”

Other statistics further illuminate how Wyoming may have achieved this
record low. According to the Baker Hughes rotary rig count, in the last
three years the amount of oil and gas drilling in Wyoming has declined
by almost 50%. In September 2007, Wyoming averaged 78 rotary rigs and
North Dakota averaged 43. By September 2010, Wyoming averaged 43 rotary
rigs while North Dakota had tripled to an average of 131 rigs. This drastically
increased activity could partially explain how North Dakota leapt from
having the seventh worst workplace fatality rate in 2007 to the second
worst rate in 2009.

In recent years, Wyoming’s workplace safety record has appropriately
been the focus of much attention. Following the 2009 legislative session,
Governor Freudenthal announced the formation of a workplace safety task
force. Former District Judge Gary Hartman, serving as a special adviser
to the Governor, headed what was later named the Wyoming Worker Fatality
Prevention Task Force. The task force met several times in 2009 and formed
sub-committees focusing on the oil and gas industry, construction, transportation,
and data. Ultimately, the task force made three key recommendations prior
to the 2010 budget session.

The first recommendation, which later became House Bill 93, would have
increased employer penalties for serious and willful OSHA violations.
The second recommendation, which later became Senate File 64, would have
increased the fine for failing to wear a seatbelt from $25 to $75 while
keeping the failure to wear a seatbelt as a secondary offense. The third
recommendation was for the State to hire an epidemiologist who could create
a centralized database studying workplace fatalities. A centralized figure
was important because many different organizations including MSHA, OSHA,
the Wyoming Highway Patrol and County Sheriff’s Departments can
have jurisdiction over and investigate workplace injuries and fatalities,
leaving information relating to worker deaths scattered and isolated.

On August 3, 2010, the Governor’s office announced that Dr. Timothy
Ryan had been named the State’s new Occupational Epidemiologist.
Dr. Ryan was tasked with examining “occupational safety issues in
Wyoming, including data, injury prevention and public policy options.”
According to the press release, “[t]he position and a centralized
database of workplace fatality and injury information will be paid for
through the Industrial Accident Fund. Gary Child, director of the Wyoming
Department of Employment, said the epidemiologist and database are financed
through employer premiums to the workers’ compensation program,
and they fit within the statutory requirements of addressing worker safety
issues.” The epidemiologist position and database were modeled on
Alaska’s successful efforts, in coordination with NIOSH (The National
Institute for Occupational Safety and Health), to protect its workforce
and dramatically lower the number of workplace fatalities.

House Bill 93 – OSHA Penalties, was one of the task force’s
two legislative recommendations. Twelve Representatives and four Senators
sponsored the bill and its key provisions would have increased OSHA penalties
for three different categories of violations. For willful and knowing
violations of the Wyoming Occupational Health and Safety Act, penalties
would increase from between $5,000-$70,000 to between $8,000 and $120,000.
If the willful and knowing violation resulted in a fatality, the penalty
amount would increase to not less than $50,000, nor more than $250,000.
For serious violations of the Act, the penalty would increase from a maximum
of $7,000 to a new maximum of $12,000. If the serious violation resulted
in a fatality, the penalty amount would increase to not less than $20,000,
nor more than $50,000. For violations “determined not be of a serious
nature”, the civil penalty similarly increased from a maximum of
$7,000 to a new maximum of $12,000 for each offense. If this category
of violation resulted in a fatality, the penalty amount would increase
to not less than $20,000 nor more than $50,000.

The bill provided a golden opportunity for the legislature to emphasize
its commitment to the safety of Wyoming workers. House Bill 93 did not
originate in Wyoming and is essentially identical to certain provisions
found in proposed federal legislation – H.R. 2067 – The Protecting
America’s Workers Act. H.R. 2067, if enacted, will amend and update
the federal Occupational Health and Safety Act of 1989. Because Wyoming
OSHA acts in accordance with the federal OSHA statutes, if the federal
legislation passes, it will apply in Wyoming. Thus, the Wyoming legislature
had the chance to make a stronger commitment to workplace safety than
what was currently required under federal law. House Bill 93 passed in
the State House of Representatives, squeaked through the Senate Minerals,
Business and Economic Development Committee in a 3 to 2 vote, and, on
third and final reading in the Senate, the last step before it would have
gone to Governor Freudenthal’s desk for signing, failed in a 15
to 15 vote.

The second legislative recommendation from the task force was Senate File
64 – Safety belt violations. Four Senators and five Representatives
sponsored the bill, which would have increased a driver’s fine for
failing to wear a seatbelt from $25 to $75. The bill would have kept seatbelt
violations as a secondary offense. A secondary offense means for a seatbelt
violation to occur, the offending driver must be pulled over for another
offense; however, if not wearing a seatbelt, a driver can be ticketed
for the seatbelt offense too. A driver cannot be pulled over for failing
to use a seatbelt if that is the driver’s only offense. The task
force’s transportation sub-committee considered and rejected raising
seatbelt violations to primary offense status.

During the task force meetings, it became apparent that transportation
accidents accounted for a large number of Wyoming’s workplace fatalities.
From 2003 to 2007, 136 of the 210 workplace fatalities were categorized
as transportation incidents. In many of those 136 fatalities, the driver
and/or passengers were not wearing seatbelts. In 2009, 11 of the 19 workplace
fatalities were categorized as transportation incidents. Senate File 64
advocates hoped that a higher fine would help change Wyoming’s driving
culture to increase seatbelt usage.

Senate File 64 passed the Wyoming Senate by a 23 to 7 margin and easily
survived its first two readings in the House. However, once Representatives
learned about the Senate defeating the OSHA penalties bill, several legislators
who are commendably committed to improving workplace safety, discussed
their frustration with the task force, the Senate, and the quality of
the proposed legislation, and voted against the seatbelt bill by a 41
to 17 margin. By March 4, 2010, each of the Task Force’s legislative
recommendations had been killed, and understandably upset legislators
were openly questioning whether members of the task force had publicly
supported the bills, while privately working against them. The task force
disbanded after a final meeting on April 19th, 2010.

Between our State’s woeful safety record and the Task Force’s
backing, it was shocking that neither recommendation became law. However,
it is debatable how much of an impact either bill might have had. The
OSHA penalties bill would only have applied after a willful, serious or
non-serious violation, or once a workplace fatality had already occurred.
Whether the potential threat of increased fines would have led to better
safety practices and actually prevented injuries is unknown. Similarly,
it is difficult to imagine a person who would choose not to wear a seatbelt
if the fine was $25, suddenly deciding to wear a seatbelt because the
fine had tripled. The effectiveness of Senate File 64 becomes even more
questionable since there would have to be a separate, primary violation
for the increased seatbelt fine to apply.

Each and every workplace fatality devastates families and destroys lives.
In 2009, the legislature admirably and significantly improved the Workers’
Compensation death benefits for a deceased worker’s spouse and children.
In addition to the unimaginable grief individual families privately experience,
each compensable workplace fatality can cost the Workers’ Compensation
fund hundreds of thousands of dollars. Our State’s leaders and employers
could accomplish multiple goals by affirming their commitment to safety.
The benefits of lowering our workplace fatality rate include saving lives,
minimizing the pain and anguish experienced by the families of deceased
workers, and, annually conserving millions of dollars in Workers’
Compensation claims.

While the appointment of an epidemiologist is a promising step in the right
direction, we should identify and then strive to achieve ambitious goals.
I would challenge ourselves to the following: Wyoming’s workplace
fatality rate should equal or be less than the national average within
five years.

W.S. § 27-11-102(a)(i-vi) outlines key policy declarations for the
Wyoming Occupational Health and Safety Act. Policy specifics include,
but are not limited to, preventing accidents and occupational diseases,
recognizing that following rules and regulations are the responsibility
of both employers and employees, helping and assisting both employers
and employees in accident and occupational disease prevention through
educational means, and furnishing consultant services for developing safety programs.

The Wyoming Constitution clearly mandates where workplace safety program
funding comes from. Article 10 § 4(c) discusses the accumulation
and maintenance of the Workers’ Compensation fund for extrahazardous
employments. It states, “[m]onies in the fund shall be expended
only for compensation authorized by this section, for administration and
management of the Worker’s Compensation Act, debt service related
to the fund and for workplace safety programs conducted by the state as
authorized by law.” In the last couple of years, various legislative
committees and the Wyoming House and Senate have debated, and decided
against enacting proposed legislation that may have increased liability,
penalties or fines for assorted infractions. Each of these abandoned approaches,
as well as the improving of Workers’ Compensation benefits, deals
with our workplace safety problem after an injury has occurred. A new
approach must include identifying problems and preventing injuries before
they occur.

The Department of Employment’s Workers’ Compensation Division
has approximately ten times as many employees as Wyoming OSHA. As presently
situated, ten times the personnel are devoted to dealing with the effects
of workplace injuries as there are to preventing them. Wyoming OSHA must
be provided the resources it needs to achieve the goals articulated in
the OSHA’s Declaration of Policy. Clearly, with a safety record
dating to 2003, of worst, worst, worst, second worst, worst, worst, and
now third worst in the country, more resources should be devoted to the
State agency tasked with preventing workplace accidents.

One would assume that Wyoming’s citizen legislators serve in order
to improve both Wyoming government and the lives of their constituents.
We endow our fellow citizens, in their roles as legislators, with a tremendous
amount of responsibility, responsibility that entails a great deal of
hard work and personal sacrifice. But, there can be no nobler calling
of a citizen legislator than to enact laws that designed to protect and
save the lives of fellow citizens. It is crucial that they do.

*Mark Aronowitz is the director of the public interest law firm Lawyers and Advocates
for Wyoming (L.A.W.), and he is developing the Spence Association for
Employee Rights (SAFER). Mark spends much of the year fighting for workers
rights across the state of Wyoming, both at the grass roots and the legislative
levels. For more information about Mark’s work with SAFER,
Read more about SAFER here